On deep background 41 years later

Roe v. Wade

Type "41st anniversary of Roe v. Wade" into Google and you will get more than 54,000 hits. Wednesday marks the date. It caused me to review the notes of a conversation a small group of us had with U.S. Supreme Court Justice Harry Blackmun and his wife about Roe. It was the summer of 1994, the 21st anniversary of Roe..

He would take no questions; he spoke from notes. His wife Dottie sat next to him, wearing a T-shirt that said, "The Supreme Question: Row vs. Wade." Underneath it was a cartoon of a man rowing while another was wading in the water. I was surprised that she treated the topic as a joke.

Blackmun began by saying, "One usually doesn't speak about the conference of the U.S. Supreme Court." However, it was important to speak to "promote understanding of the Supreme Court." "I decided it," he said.

At the end of 1971, there were only seven justices on the court, so Chief Justice Warren E. Burger appointed a committee to select cases for argument, to avoid a 4-to-3 split. "The screening process was poorly conducted by the screening committee, of which I was a member," he said. It placed Roefor argument. "Our screening committee made serious mistakes. We had a bull by the horns."

He said, "The first (oral) argument was poor. Three of the four oralists were women. Sarah Weddington (one of the lawyers arguing the case) puts on her stationery, 'Winner of Roe v. Wade.' I find that peculiar." Blackmun's gratuitous comments about the gender of the oral advocates and their competence came with no transition, either before or after, and no explanation why.

During the first argument, Blackmun was "disturbed" that the parties did not discuss the Hippocratic oath. "One of the woman oralists, in reaction to my question, said that it was irrelevant." However, some versions of the oath say doctors cannot prescribe abortion and Blackmun considered that significant.

At the conference a few days later, the votes were tentative, according to Blackmun. He recalled that Justice Burger suggested "Someone should prepare a helpful memorandum, not a first opinion. (Justice William) Douglas wanted the assignment, but Burger gave it to me. I don't know why. Maybe because of my 10-year association with Mayo (Clinic)."

Blackmun's memorandum urged that the Supreme Court strike the law. He also "wanted (a) new oral argument, to get some help on the Hippocratic oath. Also, (Justices William) Rehnquist and (Lewis) Powell were now added to the court." Blackmun said Chief Justice Burger also wanted reargument. "I think that he thought that he might get a 5-to-4 majority to uphold the law." Then Blackmun said, with emphasis, "It was ugly."

During the summer recess, Blackmun went to the Mayo library, to research the history of the Hippocratic oath. At the second conference, the vote was 7 to 2 to invalidate the law.

Blackmun said Justice Byron White wrote a bitter dissent, referring to "raw judicial power." With a strong emphasis in his voice, Blackmun quipped: "I made Byron eat those words later in other cases." When White announced his dissent, "White was emotional." Blackmun asked rhetorically: "Why was White so strong against my view? His upbringing in modest circumstances? Or his wife's influence?"

It did not occur to Blackmun that White based his dissent on the court's precedent. Blackmun said, "We tried to decide the case on a constitutional basis, not a moral basis." Blackmun did not give that presumption to White.

Another Blackmun disclosure: "To date, I've gotten almost 70,000 letters on Roe. I have read almost all of them." He said many letters are "abusive" and he was amazed that many people objected to his decision. "Shortly after I spoke in Cedar Rapids, Iowa, I was picketed. I was surprised."

He objected that "academic opinion was generally adverse" to Roe as not grounded in law and said that he thought it was unconstitutional for the government to fail to fund abortions for poor people.

The Constitution gives federal judges lifetime appointments, so that they don't feel compelled to follow public opinion in deciding cases. Blackmun, however, apparently did follow it. He was pleased that a "New York Times editorial was in favor," but noted that letters to the editor "were divided."

Roe "protected the woman's right, with the physician, to get an abortion." Blackmun emphasized the italicized phrase with his voice. He spoke of the case as a doctor's rights case, not a woman's right case. In Roe, Blackmun said, for the first trimester, "the attending physician, in consultation with his patient, is free to determine, without regulation by the state, that, in his medical judgment, the patient's pregnancy should be terminated." Note that the right was the right of the physician, whom Blackmun assumed was male.

Blackmun explicitly rejected the argument that "one has an unlimited right to do with one's body as one pleases." Instead, in Roe, Blackmun cited, with approval, Buck v. Bell, a 1927 case that approved of compulsory sterilization.

He closed by saying, "it has been exciting to be in the center of the issue so politicized by the political branches." He added, "I make no apologies for the scholarship or result in the opinion." His last words on Roe, "I'm really not too bad a guy after all."